The courts have ruled against land acquisition in Uttar
Pradesh and West Bengal, in effect, preparing the ground for implementation of
the proposed Central law on land acquisition even as it awaits passage in
Recently, the Allahabad High Court quashed the compensation
of land in three villages — Asdullapur, Shahberi and Devla - while instructing
the Greater Noida Development Authority to pay a higher compensation in
villages that had challenged land acquisition by the state.
Earlier, the Calcutta High Court upheld the Singur Land
Rehabilitation and Development Act, which quashed the land acquired by Tata
Motors and paved the way for its return to farmers.
Under the proposed law, the Land Acquisition, Rehabilitation
and Resettlement Bill, 2011, it is clarified that land acquisition refers to
the forcible acquisition of land from an unwilling seller and is distinct from
a land purchase from a willing seller.
Earlier, the Supreme Court annulled land acquisition in the
Shahberi village in Greater Noida. So, one thing is clear — land acquired from
reluctant farmers is liable to be quashed.
When the Supreme Court set aside the land acquisition in
Shahberi, it said that food security was a major challenge. It laid down that
the doctrine of ‘eminent domain` would have to be read with Articles 14 and 21
of the Constitution and the Directive Principles of State Policy.
Article 39 of the Constitution mandates that the State shall
direct its policy towards securing that the citizens have the right to an
adequate means of livelihood and that the ownership and control of the material
resources of the community are so distributed as best to subserve the common
COURTS VS GOVT
The power of eminent domain has been recognised as an
essential attribute of sovereignty. It means the legal capacity of the State to
acquire the private property of individuals for public purposes. The Supreme
Court held in Kameshwar Singh v. Bihar (1951) that though the existence of this
power is recognised, Constitutional provisions act as safeguards subject to
which the right may be exercised.
On the issue of compensation and the right to property, the
government and courts have been on a collision course. The courts have sided
with property rights of the individual, forcing the Centre to dilute these
rights through Constitutional amendments. However, it should be noted that the
Centre had then sought to push ahead with zamindari abolition, whereas now land
acquisition is often seen to benefit private interests.
So, the first amendment, made when the Constitution was
hardly a year old, amended Article 19 of the Constitution and inserted
provisions for securing Constitutional validity for the zamindari abolition
laws. The Fourth Amendment overturned the Supreme Court ruling in West Bengal
v. Bela Banerjee (1954) by providing that no acquisition shall be called into
question on the grounds that the compensation was not adequate.
The Seventeenth Amendment further circumscribed the
fundamental right to property under Article 31. The concept of “estate” was
expanded to overcome the Supreme Court`s decisions and those of the Kerala High
Ryotwari estates were specifically included in Article 31A
as the Supreme Court held in Karimbil Kunhikonam v. Kerala (1962) that ryotwari
estates did not fall within the ambit of Article 31A.
At the same time, the state was restrained from acquiring
any self-cultivated land within the ceiling fixed by law till compensation not
less than the market value was paid. When the court persisted in its
interpretation of the word “compensation”, Parliament substituted it with the
word “amount” by the Constitution (Twenty-Fifth Amendment) Act, 1971.
The proposed Bill recognises the state`s right to acquire
for ‘public purpose`, but again this term has been defined so broadly that it
leaves wide scope for misuse as has been the case so far.
It includes, among other things, provision of public goods
and services by private companies or public-private partnerships; these require
the consent of 80 per cent of project-affected people.
PUBLIC PURPOSE LEFT VAGUE
The definition of ‘public purpose` should have been narrowed
down to the minimum, little scope for discretionary interpretation. The Land
Acquisition Act, 1894 did not define the term ‘public purpose`, and so, it was
left to the courts to interpret it.
Even in 1971, when the right to property was a fundamental
right, the Supreme Court, in Jage Ram v. State of Haryana (1971), rather
surprisingly, took a very wide view of the term and left it to the state
governments to define the terms. Prior to this, the courts had protected the
right to property, which led to several Constitutional amendments.
The logic behind ‘public purpose` is that the state would
always act in the larger public interest.
However, recent experiences have belied this assumption.
Land acquisition in Greater Noida was set aside because the land use was
changed without any justification to benefit builders. The state acted like a
For over two decades, the state has been using its power to
acquire land for use by private industries whose aim is to earn profit above
The second shortcoming of the Bill is that it has retained
the urgency clause of 1894 Act. Section 5 of the Land Acquisition Act, 1894
provides for public hearing and objections are invited under it. But this
public hearing can be suspended under urgency clause of Section 4(17).
If it is done, then the state acquires the land without
hearing the land owner under Section 9 and if the owner refuses to accept the
price of his/her land, then the money is deposited in the account of ADM (Land
Acquisition) which s/he can collect any time in the future.
In Greater Noida, the urgency clause was invoked without any
justification as there was no natural calamity or disaster or immediate threat
to the national security. Further, the Bill does not provide for adequate
compensation as the market rate is not defined.
It seeks to pay four times of the market rate; the earlier
draft had proposed it at six times. The market rate is quite unrealistic as
most of the payments are made in cash to save on stamp duty. If it is decided
on the basis of circle rate decided by the DM, then also it is very low.
The state should not be totally divested of its role in
acquisition; instead, its accountability should be enhanced.
If the private sector is given full freedom to purchase land
from farmers, there is every possibility that the poor will be lured or coerced
into selling for a pittance.
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